Marracino v. AlexanderMarracino v. Alexander
Anspach Meeks Ellenberger LLP, Buffalo (Kimberly D. Gensler of counsel), for appellants.
Jeffrey Freedman Attorneys at Law, Buffalo (Brian D. Knauth of counsel), for respondents.
Lance R. Plunkett, Albany, for New York State Dental Association, amicus curiae.
OPINION OF THE COURT
Green, J.
The public policy of this State favors the resolution of disputes through arbitration and other alternatives to litigation (see Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91, 95 [1975]; Ferguson Elec. Co. v Kendal at Ithaca, 274 AD2d 890, 891 [2000]). Parties who elect to resolve their disputes through arbitration may not thereafter litigate claims that were the subject of arbitration (see Gibeault v Home Ins. Co., 221 AD2d 826, 827 [1995]). Indeed, whеn a dispute has proceeded to arbitration and an award has been made, a complaint arising from that dispute is subject to dismissal pursuant to
Peer Review and Quality Assurance Committee Proceedings
Beginning in 2004 plaintiff was treated by Gary J. Alexander, D.D.S. (defendant), а dentist specializing in prosthodontics. Defendant performed a full-mouth restoration, which was completed in February 2007. Following the completion of that procedure, plaintiff was not satisfied with the outcome and complained оf constant pain, discomfort and other difficulties. In 2008 plaintiff, defendant and another dentist associated with defendant entered into an “Agreement to Submit to Peer Review” (Agreement). The Agreement provided, inter alia, that the dispute would be heard and decided by the Peer Review Committee of the New York State Dental Association, that the decision and award of the Peer Review Committee would be binding, and that the amount of any award to plaintiff would not exceed the fee actually paid for the treatment under review. As relevant to this appeal, both plaintiff and defendant agreed to waive their right to sue each other, except to bring an action to enforce the Agreement or the award of the Peer Review Committee.
With respect to the right to an attorney, the Agreement provides that the parties “understand that [they] have the right to have [their] own attorneys and acknowledge that [they] were given the opportunity to hаve [their] attorneys review this Agreement before signing it.” In addition, the parties acknowledged that, before signing the Agreement, they received and read a pamphlet entitled “A Guide to Peer Review” (Guide). The Guide advises patients initiating Peer Review that they are not required to be represented by a lawyer and that there is no questioning or cross-examination, but “[a] lawyer representing a party to the Peer Review may attend the hearing” along with others who may be invited to attеnd as observers. The Guide further advises that “[s]uch attendees do not participate in the hearing.”
In May 2008 a hearing was conducted before the Eighth District Dental Society’s Peer Review and Quality Assurance
Plaintiff exercised her right to take an appeal from the Committee’s decision to the Council on Peer Review and Quality Assurance of the New York State Dental Association (Council). Pursuant to the Agreement and the Guide, the grounds for appeal are limited to newly discovered “significant” evidence or “a significant prejudicial, procedural irregularity that would be likely to affect the outcome of the case.” The Council determined that “inconsistencies between the individual clinical assessments and the decisions noted in the Committeе’s report” constituted such a “procedural irregularity.” The Council therefore granted the appeal, set aside the Committee’s decision, and directed the Eighth District Dental Society to rehear the matter.
For reasons that are not explained in the record, the matter was transferred to the Seventh District Dental Society, which scheduled a rehearing in Brockport. Prior to the rehearing date, plaintiff wrote a letter to the Council Chairman objecting to the vеnue and the composition of the Seventh District Dental Society’s Peer Review and Quality Assurance Committee. Upon being advised by the Council Chairman to raise those objections at the rehearing, plaintiff in turn advised the Eighth District Dental Sociеty by letter that she was withdrawing from the Peer Review process. The Chairman of the Seventh District Dental Society’s Peer Review and Quality Assurance Committee responded by letter, advising plaintiff that she was no longer in compliance with the Agreement and that, “[a]s a result, the decision of the Eighth District Dental Society’s Peer Review Committee stands as final. [Defendant] is therefore entitled to retain the fees for the treatment provided for [plaintiff].”
On October 31, 2008, the same day on which she nоtified the Eighth District Dental Society that she was withdrawing from the Peer Review process, plaintiff commenced the instant action
CPLR 7506
” ‘[T]his State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties’ ” (Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49 [1997]; see Matter of Kern v Krackow, 309 AD2d 650, 651 [2003], lv denied 1 NY3d 505 [2003]). Courts, therefore, sparingly interfere with agreements to arbitrate (see Shah v Monpat Constr, Inc., 65 AD3d 541, 543 [2009]; Matter of Miller, 40 AD3d 861, 861-862 [2007]). Further, in the event that there is judicial review of an arbitration proceeding, such review is extremely limited (see Elul Diamonds Co. Ltd. v Z Kor Diamonds, Inc., 50 AD3d 293 [2008]), as is judicial review of the resulting award (see Mobil Oil Indonesia v Asamera Oil [Indonesia], 43 NY2d 276, 281 [1977], rearg denied 43 NY2d 846 [1978]). However, “[p]recisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded” (Matter of Goldfinger v Lisker, 68 NY2d 225, 231 [1986], mot to amend remittitur granted 69 NY2d 729 [1987]).
In enacting
The peer review agreements at issue in Volpe, Nastasi and Sartiano expressly precluded the parties to the agreements from being represented by an attorney, and the courts in those cases concluded that such agreements wеre contrary to the mandatory terms of
“bespeaks meaningful participation—the right of counsel to speak, to object, to argue and to advocate on behalf of a client before the panel as thе case is presented by the opposing side. The right to counsel becomes meaningless if counsel is consigned to quiet attendance as a mere observer at the proceedings” (Matter of Coty Inc. v Anchor Constr., Inc., 2003 NY Slip Op 50013[U], *12 [2003], affd 7 AD3d 438 [2004]; see Mikel, 85 AD2d 604 [1981]).
Thus, the arbitration proceeding did not comply with the requirement of
As a further ground for affirmance, we conclude that the award allegedly supporting defendant’s motion to dismiss is not a final awаrd subject to confirmation. “Generally, the award is the arbitrators’ decision and final determination upon the matters submitted . . . and must be coextensive with the submission” (Mobil Oil Indonesia, 43 NY2d at 281). Here, the Committee made a determination that defendant’s treatment of plaintiff was appropriate and consistent with the standard of care, and that defendant therefore was entitled to retain his fees for that treatment. That determination, however, was set aside on appeal. Thus, at that stage, there was no “final and definite award” resolving the matter submitted for arbitration (
Accordingly, we conclude that the order should be affirmed.
It is hereby ordered that the order so appealed from is unanimously affirmed, without costs.